Matilde M.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171689 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Matilde M.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120171689

Agency No. ATL160402SSA

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 15, 2017, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Representative (CSR), GS-08, at the Agency’s field office in Paducah, Kentucky. As a CSR,
Complainant’s job entails conducting interviews, explaining technical provisions of SSA
programs to the public and responding to inquiries. Complainant alleges she suffers from mental
and physical impairments, such as epileptic and nocturnal, non-epileptic seizures. Complainant
was diagnosed with dizzy spells, wherein she passes out when her blood pressure crashes.
Complainant also stated she suffers from hypoglycemia, chronic migraine headaches, and
ADD/ADHD (Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder).
Complainant stated she was diagnosed with extensive adhesion disease in 2007, which affects
her ability to walk, her bladder, and requires multiple surgeries every few years. Additionally,

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant stated she was also diagnosed as hearing impaired in 2012, and has a tremor in her
left hand from a fall she sustained at work in February 2015. From approximately February 2015
to January 2016, Complainant was off work on unpaid medical leave due to this fall at work and
submitted her request for Work at Home by Exception (WABHE) during that time on leave.
Complainant also noted that she has severe carpal tunnel syndrome, which required surgery to
both of her hands in December 2011 and January 2012. Lastly, Complainant stated that she is
restricted from driving for one year due to her seizure condition.

On May 27, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability, age (52), and reprisal for prior protected EEO activity
when:

1. On December 28, 2015, Complainant's requests for reasonable accommodation were
denied based on her age and reprisal (prior EEO activity).
2. Starting in May 2013, and thereafter, Complainant's requests for reasonable
accommodation were denied based on her disability (physical and mental).
3. Starting in 2010 and thereafter, the Agency subjected her to nonsexual harassment based
on her age, disability, and reprisal (prior EEO activity), in terms of her working
conditions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

Complainant’s allegations center around her July 24, 2014, and December 28, 2015, reasonable
accommodation requests for a work at home by exception (WAHBE) which is a temporary or
permanent telework option for employees who cannot commute due to medical reasons. The
Agency denied her first request due to the lack of medical documentation but did offer her an
office location closer to her home, which she refused. The Agency denied her second request for
WAHBE because Complainant failed to provide adequate medical documentation supporting her
need to work at home as well as the fact that she could not perform an essential function of her
job at home. Complainant’s harassment claims include being escorted from the office by
security, reporting to the carpet cleaning company that she was the source of information on their
employee, denying her request for work at home exception, and placing her on a performance
assistance plan.

Additionally, her complaint utilizes past accommodation requests and the Agency’s responses to
those requests as evidence of discrimination and reprisal to deny her work from home request.
To the extent Complainant alleges in claim (3) that her reasonable accommodations were denied
by the Agency in 2011 and early 2013, we note those claims were appealed and this Commission
found the evidence of the record did not establish that discrimination occurred. See Celine D. v.
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Soc. Sec. Admin., EEOC Appeal No. 0120152553 (Oct. 6, 2017). Therefore, we will not address
these previously adjudicated incidents.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

With regard to all three claims, many of the incidents Complainant notes in her affidavit are
without factual detail to investigate. Moreover, many of the incidents noted in her affidavit were
already adjudicated in her previous EEO case regarding alleged accommodations denied prior to
May 2013.

Harassment

With regard to claim (3), to establish a claim of harassment a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

Here, Complainant fails to provide evidence to support the assertion that any alleged harassment
was based on her protected status. With regard to Complainant being escorted from her office
building in February 2015, it is undisputed by all parties that she was nauseous and laid on the
floor of her cubicle in an effort to control her bladder. Complainant never alleged she requested
medical assistance. The Agency asked Complainant what she needed to feel better to which she
requested a dark room to lay down in. Complainant requested the office lights be removed in
order to alleviate her symptoms. The Agency averred the maintenance request to remove the
lights could not be completed immediately and removing the lights could not be done without
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maintenance personnel or a ladder. The Agency stated she was offered a private room for two
hours but she refused the offer. All parties agree because she was sick she was asked by staff to
go home but she refused. The Agency reported coworkers were going to become sick because of
Complainant’s continual gagging noises; after consulting with other Agency officials,
Complainant was escorted from the office out of concern for the health and safety of the rest of
the staff. All parties agree Complainant refused to leave work and sat outside the office building
for the remainder of the day. There is no evidence to show Complainant was disciplined as a
result of this incident. We find the Agency had a reasonable belief based on the objective
evidence that Complainant may not have been able to safely perform the essential functions of
her job and/or was a health and safety concern for her and other staff in the office that day. We
find the Agency’s action to escort Complainant from her office that day were neither severe nor
sufficiently pervasive to alter the conditions of her employment. See Complainant v. Department
of Veterans Affairs, EEOC Appeal No. 01A43711 (November 1, 2004); Complainant v. U.S.
Postal Service, EEOC Appeal No. 01A34825 (July 14, 2004).

With regard to the other incidents Complainant alleged in her formal complaint and referenced
supra, we find Complainant failed to establish these actions were based on her protected class
and were not severe enough to alter the conditions of her employment. Of note, the record shows
the performance assistance plan started in June 2016 to provide technical training and mentoring
after she reported issues completing interviews and her supervisor noted her interpersonal skills
needed improvement. Complainant refused some of the training she was offered and had issues
with the first mentor she was given. Her supervisor granted her request to change mentors and
extended her plan an additional 30 days to give her an opportunity to improve her performance
before placing her on an improvement plan. Accordingly, we find the record does not support the
allegations of harassment.

Disability

To the extent that Complainant is alleging that the Agency denied her a reasonable
accommodation due to a disability, an agency is required to make reasonable accommodation to
the known physical and mental limitations of a qualified individual with a disability unless the
Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. In
order to establish she was unlawfully denied a reasonable accommodation, Complainant must
show that: (1) she is an individual with a disability; (2) she is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, No. 915.002 (October 17, 2002).

Here, assuming, without finding, that Complainant is a qualified individual with a disability, the
record shows the Agency denied her reasonable accommodation request because the Agency’s
medical officers determined the medical documentation did not substantiate a need for WABHE.
Moreover, if granted, Complainant would not be able to perform an essential function of her job,
including face-to-face interviews with the public. We note that the Agency offered Complainant
a work space approximately one mile from her home, which she refused. In this case,
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Complainant failed to allege what accommodations she requested from the Agency that were
denied besides WABHE.

With regard to claim (2), in addition to the accommodations already addressed, Complainant was
allowed to wear sunglasses for her sensitivity to light, offered noise cancelling headphones,
allowed an inflatable mattress to use in a dark room when her symptoms occurred, and given a
flexible leave/break schedule to accommodate her condition. The Agency also offered her anti-
glare computer screens, removed overhead lights when they could, and her paper folding
assignments were reduced to accommodate pain she experienced. Complainant has not
specifically pointed to any accommodation she was denied beside WABHE. Accordingly, we
find that Complainant has not shown that the Agency failed to provide her with a reasonable
accommodation or otherwise violated the Rehabilitation Act.

Disparate Treatment

With regard to all three claims, Complainant generally alleges she was treated differently with
regard to her reasonable accommodation requests than other employees. To prevail in a disparate
treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. In
a disparate treatment case, a prima facie case of discrimination many be done by Complainant's
showing that she is in a protected class, and was treated less favorably than other, similarly
situated employees outside her protected class. Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1875). The burden then shifts to the Agency to articulate a legitimate,
non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of disability,
age, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, that Complainant failed to provide
sufficient medical documentation to support a WABHE to be granted. Moreover, WABHEs are
granted when an employee could still perform the essential functions of the job description they
were hired for. The record establishes an essential part of Complainant’s job is interviewing
beneficiaries and interacting with the public to address inquiries as well as performing clerical
work for documentation the Agency receives. The Agency articulated that Complainant would
not be able to perform these essential functions if she worked from home. Complainant also
failed to provide any evidence to support the general claim that the Agency’s action was taken in
retaliation for her prior EEO activity or the finding that medical documentation did not support a
WABHE was a pretext for discrimination. Furthermore, her supervisor stated he followed the
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Agency’s medical officers’ recommended denial of her WABHE request in making his
determination. As such, we find that Complainant has not shown that the Agency’s articulated
reasons for its actions were pretextual.

Additionally, Complainant has not provided any facts to establish similarly situated employees
outside of her protected class were treated differently from her. Complainant did not allege or
provide any evidence of any other employees within her agency, let alone CSRs, who have been
granted WABHE. Her affidavit provides general allegations that her coworkers receive
preferential treatment, without providing any evidence to substantiate the claim. Complainant
was offered a transfer to a work site approximately one mile from her home but she declined.
Complainant was given a personal printer to accommodate her mobility issues. Regarding the
allegation coworkers received easier assignments, the record shows assignments did not change
when she returned from her 11-month leave without pay and in accordance with her job
description. Complainant was offered a flexible leave schedule as well.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements on appeal, it
is the decision of the EEOC to AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
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Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 29, 2018
Date